Ruling puts Carr in limbo between two stations

Howie Carr is expected to be off the air as the dispute over his employment continues.

By Carolyn Y. Johnson, Globe Staff | September 20, 2007

Popular radio talk-show host Howie Carr had planned to wrap up his WRKO-AM career yesterday and start fresh as host of the morning drive-time show on rival station WTKK-FM this morning.

Instead, a Suffolk Superior Court judge derailed his career shift at least temporarily, ruling that a clause in Carr's contract that allowed WRKO to match a competing radio station's offer is valid.

It's just the latest step in an increasingly convoluted tug of war over the popular radio personality and Boston Herald columnist, who will be taking a respite from radio for a while.

"At this point, Howie Carr has failed to obtain the ruling from the court that was a condition of him coming to work for us. The court's decision left many questions unanswered," Heidi Raphael, spokeswoman for WTKK's parent company, said in a statement. "We are disappointed that Howie will not be on WTKK tomorrow, but we are hopeful that he will be a part of the Greater Media family in the very near future."

In July, Carr disclosed that he would leap to a new spot on WTKK when his contract with WRKO expired in the fall. He filed a lawsuit against WRKO, alleging that provisions in his contract that bound him to stay at WRKO were unenforceable.

But Superior Court Judge Allan van Gestel wrote a memo yesterday that said the final judgment, which is yet to come, will say a provision that requires Carr not compete with WRKO is unenforceable under state law, but another clause that gives WRKO the right to hold onto its host if it matches a new offer is valid.

Entercom Communications Corp., the parent company of WRKO, alleges that it did match the job offer from WTKK in July, and says Carr is bound by a contract effective until Sept. 30, 2012. "We hope Howie comes back to work soon," Entercom spokesman George Regan said yesterday.

Carr's new job offer at WTKK was contingent on those clauses being dismissed by a court or being waived by Entercom, according to court documents.

Nancy Sterling, a spokeswoman for Carr said, "While we would like to have achieved a complete victory in court, we are gratified that the decision leaves open the opportunity for Howie to work at the place of his choosing."

Under the terms of the WTKK offer, Carr could earn as much as $7 million over five years, according to the Herald. Neither Carr's spokeswoman nor a spokeswoman at the station would comment on the details of the offer. Last month, the Globe reported that WRKO paid Carr $790,000 in 2006.

Carr did not host his afternoon show yesterday. Michael Graham, who normally hosts a WTKK show called "The Natural Truth," was expected to step in to Carr's morning slot on WTKK this morning.

The judge wrote that because Carr was still under contract to WRKO when he received and accepted an offer from a rival station, the right of first refusal written into his contract was valid.

Provisions that restrict broadcasters from competing with former employers are unenforceable under Massachusetts state law, but that legislation was never intended to prohibit employers' right of first refusal, which allows employers to match offers, according to Ken Fishkin, a Boston media attorney.

But the question of whether Carr will continue to be a radio host, airing his personality - and potentially his true feelings about the station - for four hours each day is another question. This summer, Carr railed at his WRKO bosses in a statement in which he compared the station's attempts to keep him to being a "virtual indentured servant."

"These people have paid him well; these other people want to pay him better," said Michael Harrison, publisher of Talkers magazine. "He should count his blessings."

No one can force a person to go to work, but the judge's decision yesterday appears to leave Carr in an uncertain spot, subject to a legal contract with Entercom.

"The court is aware that Carr claims that he cannot be forced to work for WRKO," van Gestel wrote in his memo. "While Carr's position may have merit, it is not presently before this court on the three motions in play. In short, it remains for another day, on another record."